The opinion of the court was delivered by: Marovitz, District Judge.
Motion For Summary Judgment of Railroads
Plaintiff was the consignee of certain bills of lading issued
by The Norfolk & Western Railway Company on January 27, 29, 30,
31, and February 7, 1969 covering the shipment of five boilers
from Erie, Pennsylvania to Orla, Texas. The boilers were damaged
in transit according to Plaintiff's complaint and it seeks
recovery of the $33,380.13 it expended to repair them. Zurn
Industries, Inc., the consignor and seller of the boilers is
joined in the Complaint as having breached its contract to
deliver the boilers in good condition.
Zurn Industries has cross-claimed against Defendant Norfolk &
Western alleging that the damage occurred while the boilers were
in the railroad's possession and that Zurn is therefore not
liable pursuant to its contract with the railroad.
Defendant railroads have filed a Motion For Summary Judgment on
the grounds that Plaintiff has failed to conform with section
2(b) of the Bills of Lading which requires that a written claim
be filed with the railroads no later than nine months after the
complained of damage occurred. A formal claim was filed with
Santa Fe on February 2, 1970 and with Alton & Southern on
November 10, 1970 both which were rejected by said railroads on
the grounds that they were filed after the nine month statutory
There is no question that damage did indeed occur to the
boilers and that a full and formal claim was not filed until
after the nine month period. Plaintiff however claims that
Defendant railroads were fully informed of the fact that the
boilers were damaged prior to the nine month period and that the
various communications in conjunction with their knowledge was
sufficient conformity with § 2(b) of the Bills of Lading since
the purpose of the Carmack Amendment, 49 U.S.C. § 20(11) which
created the nine month limitation was to ensure that the
railroads would be apprised of any claims within a reasonable
amount of time after the complained of injury occurred.
Indeed there are a number of communications between the parties
that indicate that the railroads did have knowledge of the damage
to all of the boilers and what we must determine is whether the
knowledge and the series of communications is sufficient to
conform with § 2(b) of the Bills of Lading.
Defendant railroads cite numerous cases in various
jurisdictions and circuits to the proposition that the railroads
knowledge of the fact that damage has occurred and the extent of
the damage is not a sufficient conformity with § 2(b) since a
written claim must be filed within the nine month period. They
argue that the purpose of 49 U.S.C. § 20(11) was twofold — to
ensure that the railroad or carrier would be adequately apprised
of the damage in a reasonable amount of time and to prevent
discrimination and preferences by carriers as among shippers. See
Georgia, Florida & Alabama Railway Co. v. Blish Milling Co.,
241 U.S. 190, 36 S.Ct. 541, 60 L.Ed. 948 (1916); Southern Pacific
Company v. Stewart, 248 U.S. 446, 39 S.Ct. 139, 63 L.Ed. 350;
Delphi Frosted Foods Corp. v. Illinois Central Railroad Company,
188 F.2d 343 (6th Cir. 1951); East Texas Motor Freight Lines v.
United States, 239 F.2d 417 (5th Cir. 1957); B.A. Walterman Co.
v. Pa. R.R. Co., 295 F.2d 627 (6th Cir. 1961).
Despite all of these cases we are compelled to decide in
Plaintiff's favor in view of the fact that we consider Hopper
Paper Co. v. Baltimore & O.R. Co., 178 F.2d 179 (7th Cir. 1949)
applicable to the facts in our case. In Hopper the court held
that the failure of the plaintiff to file a written claim in
accordance with the bill of lading did not preclude recovery in
view of the fact that the railroad had actual notice of the loss.
The court stated that:
"the general rule in cases such as ours is, that
failure to give notice of a claim for damages or loss
in accordance with a stipulation in a contract, for
the shipment of goods is excused, or is inapplicable,
where the carrier has or is chargeable with actual
knowledge of all the conditions as to the damages
that a written notice could give . . . Hence, we
conclude that a carrier may not use the provisions of
the bill of lading to shield itself from the
liability imposed upon it by the statute and the
common law for its negligent destruction of the
shipper's property. To hold otherwise would not be
construing the bill of lading in a `practical way'."
178 F.2d at 181, 182.
We have examined the documents appended to Plaintiff's briefs
and the contentions of both parties and we find that the
defendant railroads were adequately informed of the damage
involved to the extent that our case fits within the holding in
Hopper and that the various communications combined with the
actual knowledge of the defendant railroads adequately apprised
them of a claim for damages and a formal claim was not necessary
under the statute. All of the damage was investigated by the
railroads and included in various reports and the railroads
therefore cannot deny knowledge of the extent of the damages.
Defendant railroads claim that Hopper has been "discredited"
over the years and that most jurisdictions have refused to follow
it yet they have not cited any cases in this circuit or district
that indicates any attempt to modify that holding or overrule it
and we therefore believe that it is still the law in this
circuit. We might caution, however, that we are not in any way
attempting to dispense with the strict requirement under
49 U.S.C. § 20(11) that notice must be given within nine months and
base our decision in this case on the unique circumstances
involved and the fact that the situation falls within the Hopper
We find that the communications involved herein and the
knowledge of the railroads as to the fact that damage occurred
and the extent of the damage was an adequate substitute for the
written claim to be filed under § 2(b) of the Bills of Lading and
notice having been therefore given ...